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Admin in the 1940S Court The “Administrative Process” in the 1940s Court Aditya Bamzai* The decade between 1940 and 1950 can fairly be characterized as one of the most momentous in the formation of modern American government. The decade began with an unsuccessful attempt to enact a code of administrative procedure to govern the actions of federal agencies, many recently created during the New Deal.1 It continued with the Nation’s entry into a global war that, on the domestic front, brought on an expansion in the size and scope of government typical of countries engaged in military conflict.2 Following the culmination of World War II, the decade saw a second effort to enact a code of administrative procedure, this one successful when Congress passed, and President Truman signed into law, the Administrative Procedure Act of 1946 (APA) — the principal substance of which still survives, and still governs agency action, to this day.3 Matters were no less momentous at the Supreme Court. During the first half of the decade, the composition of the Supreme Court shifted, as several Justices who had at times displayed hostility to increased government power at the federal level were replaced by Justices who had played a role in the federal government’s expansion during the Roosevelt Administration.4 Substantively, * For helpful comments and encouragement, I am grateful to Divya Bamzai, John Harrison, and Fred Schauer. For archival assistance with this project, I am indebted to Cathy Palombi at the Law Library of the University of Virginia School of Law. I am also grateful to the staff of the Curator of the Supreme Court of the United States, the Library of Congress, and the Libraries of the University of Michigan and University of Kentucky. Finally, I am grateful for support from the University of Virginia School of Law and the Hoover Institution. 1 See, e.g., Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L. J. 908, 981-85 (2017). 2 Mariano-Florentino Cuéllar, Administrative War, 82 Geo. Wash. L. Rev. 1343, 1422 (2014) (“During the period of World War II and its immediate aftermath, the federal government carried out unusually challenging administrative feats while gradually orienting itself towards expanding the regulation of markets and administering public benefits.”); see also Adrian Vermeule, Leviathan Had a Good War, JOTWELL (Feb. 29, 2016) (“Cuellar explains that the war, rather than the New Deal, represented the key ‘inflection point’ in the growth of the administrative state. [T]he burgeoning administrative state was cemented into place during and by World War II, and by the odd political consensus that created the Administrative Procedure Act of 1946—a key legitimating mechanism for Leviathan.”). 3 5 U.S.C. 501 et seq. 4 See, e.g., STEPHEN G. BREYER & RICHARD B. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY 22 (3d ed. 1992) (“In a relatively short time, the Supreme Court (and with it, much of the lower 1 both before and after the enactment of the APA, the Court issued a series of decisions, many still taught in introductory courses on “administrative law” and still compiled in treatises on the subject.5 On the question of judicial deference to executive interpretation of statutes, the Court decided Gray v. Powell (in 1941),6 Skidmore v. Swift & Co. (in 1944),7 NLRB v. Hearst Publications (also in 1944),8 and Packard Motor Car Co. v. NLRB (in 1947)9 — all staples of the introductory administrative law curriculum.10 On the question of judicial deference to executive interpretation of agency utterances, the Court decided Bowles v. Seminole Rock & Sand Co. (in 1945)11 — which gave birth to a doctrine still sometimes called “Seminole Rock deference.”12 On the question of agency decisionmaking, the Court decided two cases (in 1943 and 1947) captioned SEC v. Chenery Corp.13 Through the decade, the terms “administrative law” and “administrative process” — previously unknown in Supreme Court opinions — were used with increasing frequency.14 federal judiciary) swung from almost undisguised hostility toward the new programs of the administration to conspicuous deference.”). The new Justices were Felix Frankfurter, Hugo Black, Stanley Reed, William Douglas, Frank Murphy, James Byrnes (briefly), Robert Jackson, Wiley Rutledge, and Harold Burton. They replaced Willis Van Devanter, George Sutherland, Benjamin Cardozo, Louis Brandeis, Pierce Butler, James McReynolds, Harlan Stone, Charles Evans Hughes, and Owen Roberts. 5 By contrast, the seminal cases decided by the Court during the 1930s tend no longer to be the focus of an administrative law course. To the extent that they are raised, they are used to illustrate doctrines, such as the nondelegation principle, that have been all but discarded. 6 314 U.S. 402 (1941). 7 323 U.S. 134 (1944). 8 322 U.S. 111 (1944). 9 330 U.S. 485 (1947). 10 WALTER GELLHORN ET AL., ADMINISTRATIVE LAW, CASES AND COMMENTS 379-80 (8th ed. 1987) (stating that, during the 1940s, the “historical building blocks” for deferential judicial review of agency legal interpretation were put in place). 11 325 U.S. 410 (1945). 12 It also known as “Auer deference” after a more recent case. See Auer v. Robbins, 519 U.S. 452 (1997). 13 332 U.S. 194 (1947); 318 U.S. 90 (1943). 14 The term “administrative process” first appears in a Supreme Court opinion in Helvering v. Wilshire Oil Co., 308 U.S. 90, 101 (1939) (Douglas, J.) (“Such dilution of administrative powers would deprive the administrative process of some of its most valuable qualities—ease of adjustment to change, flexibility in light of experience, swiftness in meeting new or emergency situations. It would make the administrative process under these circumstances cumbersome and slow.”). The term “administrative law” first appears in ICC v. Jersey City, 322 U.S. 503, 514 (1944) (“This raises an important but not a new question of administrative law . .”). 2 This article — part of a larger project to unearth the development of administrative law by the 1940s Court — discusses newly found draft opinions by members of the Supreme Court in two seminal cases, Gray v. Powell and Bowles v. Seminole Rock.15 At present, I have selected these two cases because I have sufficient research about them to include a discussion that enhances our knowledge of the development of administrative law during the 1940s. In the Library of Congress, I have also discovered letters between Felix Frankfurter and others touching upon these issues. When I obtain further information about other cases, my intention is to expand this article to create a narrative of the law’s development from 1940 to 1950. There are at least three reasons to explore the development of administrative law in the 1940s. First, and most concretely, the Court’s opinions issued during that era may still be relevant to us today — either because the cases remain the governing law or because they provide some evidence of Congress’s understanding of technical terms it elected to use when it enacted the APA in 1946. Witness, for example, the Solicitor General’s argument in the recent Perez v. Mortgage Bankers Association case16 that the “leading decisions of [Skidmore] and [Seminole Rock] . were both decided more than a year before the APA’s enactment” and that the “Court’s Seminole Rock decision . confirmed—prior to the enactment of the APA—that [ ] deference principles apply on judicial review.”17 Based on this premise, the Solicitor General contended that “[t]he Congress that enacted the APA would have understood that courts construing agency regulations would defer to [interpretive rules].”18 The date of the Court’s decisions in these cases, according to the Solicitor General, provided some evidence of the meaning of the APA. To be sure, there is a broader question whether this exercise in what may be termed “APA originalism” is a sound approach to 15 Some of my thoughts regarding the draft opinion in Seminole Rock were previously published as a blog post at Aditya Bamzai, Henry Hart’s Brief, Frank Murphy’s Draft, and the Seminole Rock Opinion, Yale J. on Reg.: Notice & Comment (Sept. 12, 2016). In addition to those two cases, I have obtained (or am in the process of obtaining) draft opinions and correspondence about the other opinions previously mentioned in the text. 16 135 S.Ct. 1199 (2015). 17 Br. for the United States, Perez v. Mortgage Bankers Association, at 13, 21. 18 Id. at 21. 3 administrative law.19 Several recent articles have adopted this approach to understanding administrative-law questions.20 The justifications for such an approach range from the superiority on policy grounds of the APA as a governing document to the claim that the APA is, simply put, the law.21 But the alternative — involving what might be termed “common law” development of administrative principles unmoored from a statutory foundation — has, in many respects, been the dominant approach at the Supreme Court.22 If the “APA originalism” approach is a sound one — an issue that cannot be fully explored in the space of this Article — the jurisprudential and intellectual debates of the 1940s may inform our understanding of the text of the APA, as the Solicitor General’s argument in Perez v. Mortgage Bankers suggests.23 Second, and more abstractly, the draft opinions reflect the intellectual undercurrents of their time — and, hence, tell us how a generation of Supreme Court Justices viewed the problems of judicial review of agency action. Justice Reed’s draft opinions in Gray v. Powell reflect his intense study of the distinction between agency review of questions of fact and questions of law, a matter that was the subject of significant debate in the immediately preceding decade.24 Justice Murphy’s draft opinion in Bowles v.
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